Dr. Brourman stated there were no periods of temporary total disability and diagnostics need did not imply temporary total disability.
Favours Defendant prevailed
This supported deferral of temporary disability indemnity issue as no clear evidence of temporary total disability.
From the decision · page 4As to the merits of the argument that applicant is entitled to temporary disability indemnity
through the date of Dr. Brourman's December 17, 2018 report, we first note that Dr. Brourman
stated:
Reports from treating physicians indicated applicant was released to modified work duty with restrictions.
Favours Defendant prevailed
Relevant to assessing partial disability and work availability, impacting temporary disability entitlement.
From the decision · page 4However, the Review of Medical Records portion of Dr. Brourman's report includes
references to several treating physician reports that indicate applicant had been released to
modified duty. In her December 3, 2015 initial report, Sylvia Dela Llana, M.D., stated that
applicant's work status was, "Modified work duty: No prolonged standing, walking, bending,
twisting, and kneeling; maximum lifting, carrying, pushing or pulling not more than 25 pounds."
(Court Exh. Z p. 5, review of medical record.)1 Also, the reports of Hitendra Shah, M.D., from
June 28, 2016, through September 15, 2016, state, "Work Status: Modified work duty." (Court
Exh. Z pp. 11 - 13, review of medical record.)
Applicant testified he was released to work but employer did not take him back and he did not want to return due to bad treatment.
Favours Applicant prevailed
Applicant's testimony raised issues about work availability and willingness to return, relevant to temporary disability determination.
From the decision · page 5At his February 5, 2016 deposition, applicant testified that he had been released to return
to work but that he could not lift heavy things, he said the employer "didn't take me back" and he
said he did not want to return to work because "they treated me very bad." (App. Exh. 2, Dr.
Kanter, August 17, 2016, p. 14, review of applicant's February 5, 2016 deposition.)
No evidence showed applicant was working after December 3, 2015, or that suitable work was available within restrictions.
Favours Defendant prevailed
Lack of evidence on work availability and actual work status led to deferral of temporary disability issue.
From the decision · page 5There is no evidence in the trial record that applicant was working after December 3, 2015,
or that there was a job available within applicant's work restrictions. However, at the trial applicant
testified that at that time he was working as a driver but not for Lyft. He then stated that he did
work for Lyft after working for defendant. The record is not clear as to the nature and extent of
applicant's work restrictions, whether defendant made work available that would accommodate
the work restrictions, or if applicant would have accepted the modified work if it was available.
Absent substantial evidence addressing those issues we cannot make a determination as to
applicant's entitlement to temporary disability indemnity benefits during the period that he was
temporarily partially disabled.